Canadian Employment Law Today

Nurse fired after trying to hide restriction on treating patients Nurse not allowed to be alone with female patients following sexual assault charge, but followed bad advice in trying to manage it himself BY JEFFREY R. SMITH A Manitoba arbitrator has reinstat- ed a nurse who was fired for fail- ing to disclose restrictions on his professional duties but has also indicated the employer isn't obligated to ac- commodate those restrictions. Tousif Ahmed is a registered nurse who worked in the emergency department of the Victoria General Hospital in Winnipeg, which is operated by the Winnipeg Region- al Health Authority. Ahmed was hired in June 2011 as a casual health care assistant and, after an unpaid educational leave, he was hired in July 2012 to be a night-shift nurse in the emergency department. He had no discipline on his record and the hospital had no issues with his competency or professionalism as a nurse. In January 2014, a patient at the hospital complained that Ahmed had touched her inappropriately during an examination. e hospital's safety co-ordinator was contact - ed, who then passed along the information to the director of human resources. ey called a meeting with Ahmed on Jan. 31 to discuss the allegations. Ahmed was upset and denied the alle - gations, explaining how he had proceeded in examining the patient. However, his de- scription of what he had done wasn't com- pletely consistent with the charting he had done at the time. e hospital interviewed the patient in question and determined it was basically a "he said/she said" situation, so they left it at that with no further action other than a recommendation that Ahmed improve his charting. On June 24, 2014, the director of the Manitoba Health, Healthy Living and Se - niors Department, Corporate Services Branch, sent a letter to the hospital advis- ing that the sexual abuse allegations against Ahmed had been investigated and conclud- ed to be unfounded. Two days later, on June 26, Ahmed was scheduled to work the evening and night shifts in the emergency department. He called in before he started the evening shift to say he couldn't work that shift as he had lost his keys. He proceeded to work the night shift as scheduled. Nurse didn't reveal restriction on treating female patients e next day, the safety co-ordinator re- ceived a call from the College of Regis- tered Nurses of Manitoba (CRNM) in- forming him that a justice of the peace had issued a recognizance order on June 20 to Ahmed because he had been charged with sexual assault for the January incident. e recognizance order imposed condi- tions on Ahmed, including that he could not be alone with any female patients while working as a nurse. e hospital placed Ahmed on paid leave until a meeting was held on July 3. At the meeting, the director of HR told Ahmed he was being terminated for breach of trust be - cause he hadn't told the hospital of the con- ditions in the recognizance order. Ahmed had worked the night shift on June 26 while the order was in force and failed to give the hospital an opportunity to safeguard pa - tients, as well as exposing it to liability. Ahmed explained that his lawyer for the criminal charges had advised him not to disclose the order to his employer or the union and he could continue working, so reported for work on June 26 and made sure he wasn't alone with any female patients. He said when he had attended upon a female patient, he had brought a housekeeper in with him, though he didn't tell the house - keeper about the order. e hospital also found no reference to the housekeeper in Ahmed's charting, though there was a ref- erence to a security guard assisting, which was unusual. When the hospital management asked what he would have done in a life-or-death situation with a female patient, Ahmed re - plied that he would "find somebody else" to respond and it likely wouldn't be a problem because there are always nurses around to help. He emphasized that he hadn't caused any harm to the hospital and his plan for compliance with the recognizance order would be to ask for assistance when needed. However, the hospital told Ahmed he didn't have the authority to put in place a self- imposed condition in order to comply with the recognizance order — and it couldn't be certain he complied with the condition without supervision — and by hiding the condition, he irreparably breached the em - ployment relationship. Ahmed was given a termination letter explaining the reason for termination was his failure to disclose the condition to the hospital. e hospital had considered a lengthy suspension instead of termination, but the breach of trust was considered too serious, along with the fact it didn't think Ahmed would be able to work in the emergency de - partment with his restrictions, as it couldn't control the sex of the patients arriving and both male and female patients were often in the same room. Due to staffing demands, it wasn't feasible to have two nurses treat - ing a patient at the same time, unless it was absolutely necessary. In addition, it was too difficult to structure a program in another department to ensure Ahmed wouldn't have contact with a female patient alone, given staffing crunches, breaks, unexpected situations, and the constant moving around nurses do during a shift. Ahmed grieved the dismissal and in Feb - ruary 2015 the hospital proposed a settle- ment in which it would reinstate Ahmed with a 21-day suspension and place him on unpaid administrative leave until the sexual assault charge against him was resolved. If there was no conviction and all restrictions on him were lifted, he could return to work with the same position and status as before but not in the emergency department. e union rejected the settlement offer, saying Ahmed had made sure he complied with the recognizance order, the suspension was excessive, and he should be able to return EMPLOYEE DISHONESTY is taken seriously by employers, as well as courts and arbitrators. It can often in itself be just cause for dismissal. But there are other factors to consider when determining if the employment relationship is damaged beyond repair. However, even if the employment relationship is salvageable, the employer may not have to bring the employee back to work right away if the employee was dishonest about his ability to do his job. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: WRONGFUL DISMISSAL

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